Indigenous Groups Win One, Lose One in the Canadian Supreme Court

July 28, 2017

The Supreme Court of Canada rendered two important decisions relating to indigenous rights and natural resource exploitation. TRNN hosts a discussion with former Clyde River Mayor Jerry Natanine and Eugene Kung, staff counsel at West Coast Environmental Law

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Story Transcript

DIMITRI LASCARIS: This is Dimitri Lascaris for The Real News. Yesterday, the Supreme Court of Canada rendered two important decisions relating to indigenous rights and natural resources’ exploitation. In the first decision, Clyde River (Hamlet) and Petroleum Geo-Services Inc., the Supreme Court overturned an authorization granted by Canada’s controversial National Energy Board or NEB. In this case, the NEB authorized a petroleum exploration company to conduct seismic testing in sensitive Arctic waters off Canada’s coast in the far north.

In the second decision, Chippewas of the Thames First Nation and Enbridge Pipelines, the Supreme Court upheld a National Energy Board authorization to Canadian pipeline company Enbridge to complete its Line 9 pipeline project in the south of Canada’s most populous province, Ontario. The Line 9 pipeline connecting Sarnia, Ontario to Montreal, Quebec opened in 1976 with the purpose of transporting crude oil from western Canada to eastern refineries. Line nine cuts through the Chippewas of the Thames traditional territory in southern Ontario and crosses the Thames River. It was approved and built without any consultation with the Chippewas of the Thames.

In 2012, Enbridge applied to the NEB to increase the annual capacity of Line 9 from 240,000 to 300,000 barrels per day, and, most importantly, to use Line 9 for the transportation of heavy crude from Canada’s tar sands.

Now here to discuss these two important decisions with us are Jerry Natanine and Eugene Kung. Jerry Natanine is the former mayor of Clyde River, which is an autonomous territory of Nunavut in northern Canada. He has been leading the legal battle to protect Inuit waters from the harms of seismic testing. Eugene Kung is staff council at West Coast Environmental Law. Jerry joins us today from Ottawa, Canada and Eugene joins us from the Coast Salish Territories in Vancouver B.C.

Thank you, gentlemen, for joining us today.

So Jerry, I’d like to start with the Clyde River case and, first of all, congratulations on this momentous victory.

JERRY NATANINE: Thank you.

DIMITRI LASCARIS: I’d like you to tell us first of all about the indigenous community in Clyde River. Traditionally, how has that community sustained itself and why was it opposed to the seismic testing?

JERRY NATANINE: Clyde River, and they were living there and people all over Nunavut, they’re nomadic people in the past before they were settled. They were settled around 1930s, ‘40s, around there. We are still hunter-gatherer society living off sea mammals and land mammals that we hunt and gather. That’s the way most Inuit communities are still. They’re hunters … daily hunters up there.

DIMITRI LASCARIS: And what was it about the seismic testing that drew the opposition of the community?

JERRY NATANINE: The seismic activity that they wanted to do … seismic testing was opposed by the community because the community feared that the seismic cannon blast would change the narwhal migration routes and other whales’ migration routes because the Baffin Bay where they wanted to do it is a wintering area for whales because it never freezes over. During the summertime they migrate back to all over the Canadian Arctic. What we feared was these mammals were gonna change their migration route or plankton or small fish would be killed off.

DIMITRILASCARIS: Now, Jerry, when the Supreme Court’s decision was announced yesterday, you made a … what I found to be a quite moving statement to the Canadian media about the challenges that your small community confronted in opposing the seismic testing and about the role of Greenpeace in all of this. You talked in particular about the resources, the relative resources, of the two sides in this battle. Please tell us about the challenges that you confronted and how Greenpeace played a role in this victory.

JERRY NATANINE: Yes, so when National Energy Board gave the permit, we had 31 days to put in an appeal. During those 31 days, we were contacting our Inuit organizations and our government up in Nunavut, and our member of Parliament and other organizations. We were trying to find someone to help us fight this and help us to get a lawyer, where can we find funding to do such a thing, and we were having a very hard time any kind of help. Greenpeace, to make a long story short, we got in touch with them to see if they want to partner up to fight this permit, and sure enough they agreed and it worked out really good.

DIMITRILASCARIS: I’d like to turn to the legal aspects of these two decisions. I’ve reviewed both of the decisions of the Court and they essentially, it seems to me, turn on a Canadian government’s duty to consult with affected indigenous communities. Please tell us about the duty to consult. When does it arise? How rigorous is it and what must the Canadian government generally do to fulfill that duty?

EUGENE KUNG: That’s a good question. The duty to consult is grounded in a section of the Constitution, Section 35, which guarantees and affirms a treaty and aboriginal rights in Canada. The reason that’s important is that in Canada we have a number of treaties, but there are also large areas, especially out here in British Columbia where I’m coming from, where there have not been treaties and the land has never been seceded. The duty to consult comes from the guarantee of those rights, the protection of those rights, including treaty rights and ensuring that the Crown, whether it’s the federal, provincial, or even territorial governments, have to consider the impacts of their decisions on constitutionally guaranteed rights before making decisions that will impact them.

Over the course of the last 30 year or so, the courts have taken that section of the Constitution and really developed this jurisprudence which says, for example, the deeper the connection with the land, and the higher the impact of this particular project will tend to result in a deeper duty to consult, whereas on the other end of that spectrum, if there’s a slow connection to the land and a low impact, obviously that duty would be not as high. I think what we’ve seen over the course of a number of years is a development of that jurisprudence. What we’re seeing with the Clyde River decision, with the Enbridge Northern Gateway decision from the federal court before it, is a clear floor, a failure of the federal government in particular, to meet that duty.

What the court has said very clearly in both of those cases is that just going through the motions and doing a generic checkbox-style consultation is not meaningful consultation. Meaningful consultation includes accommodation where appropriate. And in fact what we’ve seen in the Tsilhqot’in case that came from the Supreme Court in Canada about three years ago, was that in fact the purpose of the duty to consult should be to seek consent. Again, the courts have shifted the [inaudible] of the federal government from just doing consultation, which was done very poorly in the case of Clyde River, towards the goal of seeking consent and making sure that that is actually meaningful consultation. I think that’s a part of the big question where we’re at today.

DIMITRI LASCARIS: I’d like to go back to Jerry and let’s talk about the so-called consultation in this case, Jerry. The Court found a number of flaws and ultimately the decision came down to its beliefs, its view, which was amply supported by the evidence that the consultation in this case was inadequate, grossly so. One of the complaints about the National Energy Board has been that it often simply pays lip service to the service to the duty to consult. From the perspective of the residents from Clyde River, what were the main shortcomings in the interactions with the NEB and the petroleum exploration companies that were seeking this permit on the one hand and the residents of the community on the other?

JERRY NATANINE: Some of us in the community, we were supportive at first because the National Energy Board was saying there’s no negative effect, that company was saying there’s not gonna be any negative effect, and being National Energy Board and the government, some people believed them and we thought it was gonna go smoothly and nothing will go wrong. But after they were up there, we were asking them questions, simple questions. When you fire your air guns and there’s shrimp under there, is the shrimp gonna explode? Or how will it affect narwhals? Will it change their migration routes? Will they lose their hearing? Or the halibut. When it’s down on the sea bottom, and you fire your air cannons, is the halibut going to die? All these questions, they couldn’t answer. Or they would give us stupid non-answers that made us realize that they were not truthful. Their heart was not with us and all they wanna do is come in and do their thing and take it with them and go. And that’s how it went.

DIMITRI LASCARIS: I understand later on, after the inadequacy of the answers, it became quite apparent, the applicants filed a document, which was over 3,000 pages, and only small parts of which were translated into the language of the members … the first language of the members of the community. There were even problems for members of the community accessing the document. Is that fair?

JERRY NATANINE: Yes, that’s what happened and that was totally, totally unfair because our internet connection is only through satellite, broadband. The bandwidths are very expensive and very limited speed up there, and it would’ve taken days to download the whole document.

DIMITRI LASCARIS: I’d like to switch now to the Chippewas of the Thames case, Eugene. As I mentioned at the outset, Enbridge wants to transport heavy crude across the territory of the Chippewas of the Thames First Nation. Could you tell us a bit about heavy crude and the dangers created by the transportation of that particular type of petroleum product?

EUGENE KUNG: Sure. The heavy crude is often known as bitumen, which is the main product coming from the Alberta tar sands or oil sands. It’s a mix of oil with sand and a number of other natural sediment that’s in the ground there. In order to move it through a pipe, to make it viscous enough, smooth enough to run through a pipe, pipeline companies and oil companies have to inject different chemicals, which they call diluents, which exist in different combinations and include things like benzene and toluene and various chemicals to make it more viscous. An additional impact of that is it also makes that mix more toxic. I think one of the big questions that we have is what are the long term impacts of this different product moving through a pipeline that’s designed for refined oil, for example.

There are certainly studies that suggest that the pipes will behave differently, they may corrode differently. That raises all kinds of issues around maintenance and spill response and of course, if and when there is a spill, which unfortunately is a reality of any movement of oil, the health impacts can be much greater. I think we don’t have to look very far back in the past to look at, for example, the Kalamazoo River spill, also an Enbridge Pipeline, which was a diluted bitumen pipeline, a heavy crude pipeline, that had massive impacts that are still being felt today. That the investigation into that, into Enbridge’s convect, I believe they called them kind of Keystone cops, or that type of approach to their operations.

The product that’s in the pipeline matters, it matters for very real reasons, including maintenance and safety and the ability of affected communities to understand and to prepare for those dangers, should they happen. Because, as I’ve said, the health impacts are also quite a lot higher, or can be quite a lot higher, given all of the extra chemicals involved.

DIMITRI LASCARIS: Despite the dangers posed by the transportation of this petroleum product, despite the opposition of the Chippewas of the Thames community, or First Nation, the Supreme Court of Canada, nonetheless held that the NEB authorization was valid, properly given. When I was in Vancouver last … Eugene, I interviewed you for The Real News and we talked about the duties that the Crown has under Canadian law towards First Nations in resource exploitation. I recall that you talked about a developing notion of not just a duty to consult, but a duty to obtain consent.

Earlier in this interview, you talked about a duty to accommodate. How do you reconcile the decision in the Chippewas of the Thames First Nation case with any kind of concept of a duty to accommodate or a duty to consult or duty to obtain consent because here the Chippewas of the Thames First Nation is clearly opposed to this dangerous pipeline on their territory, which was built in the first place without their consent at all and any kind of consultation in a meaningful way, it sounds. Doesn’t this suggest that in fact the legal rights of First Nations under Canadian law are quite limited and really what they’re entitled to is, depending upon the circumstances of the case, a good faith and meaningful consultation from the government.

EUGENE KUNG: Certainly the decision was disappointing. The flip side of the two decisions that came yesterday, and the Chippewas, was disappointing in the sense that the Supreme Court seems to have stepped back a little bit from what they had said in the Tsilhqot’in decision, which was not a standard of consent, but that the goal of consultations should be to seek consent. Clearly that was not obtained here. What the Supreme Court held in the Chippewas of the Thames decision, was that the process that the National Energy Board put forward, including finding participation, allowing the filing of evidence and making arguments, was enough to satisfy that duty and that some of the conditions that were put on were seen as adequate accommodation. I would personally say that that is a disappointing standard and that, I wouldn’t speak for the community in the Chippewas of the Thames, but I would imagine they are also disappointed by that finding.

This is within this larger context of what is the proper role of the National Energy Board and discharging that duty that’s protected by the Constitution. It’s happening within this larger conversation in Canada about what is the National Energy Board? It’s undergoing, as you may be aware, a full sail review, along with a number of other of our environmental laws. As part of that, the role of that Board in discharging the duty to consult, will be discussed and examined. While I’m disappointed by this decision … it still remains to be seen how it will play out moving forward as the National Energy Board continues to change and shift, as promises around the implementation without qualification of the United Nations Declaration of the Rights of Indigenous People starts to weave into Canadian law. As the calls to action from the Truth and Reconciliation Commission, again which we committed to be implemented, as they play in, those will also be impacting, moving forward, how decisions are made under whatever the new National Energy Board body is.

Let’s not forget that only a few years ago, that same National Energy board’s position on consultation was that, hey, we’re not equipped. We’re not set-up to deal with consultation. We’re an adversarial system. That’s not an ideal model for consultation and collaboration. What we’ve heard come from the federal government around the National Energy Board modernization is that they want that to be done together, with indigenous peoples, with indigenous governments, making those decisions together. I think what we’ve seen here is a bit of a revealing of what the floor may be. But we’re not shooting for the floor, we’re shooting for the ceiling, and I think that’s what the standard and what Canadians expect, in terms of how this government makes decisions in concert with indigenous people who have been here since the time [inaudible].

DIMITRI LASCARIS: Lastly, just returning to close with Jerry. Jerry, I’d like to ask you about the future … again, as I read the decision, the fundamental problem the court found was in the adequacy of the consultation. Do you think that this oil exploration project is now dead, or do you think there’s a real prospect that these petroleum exploration companies are going to take another run at this and this time try to improve, materially, the level and nature of the consultation so that they can get an authorization from the NEB that will withstand court scrutiny? Where do you think this is gonna go and if they do try to revive it, how will the residents of Clyde River likely react in your opinion?

JERRY NATANINE: We’re gonna treat them as they’re going to try it again. That’s the safest where we can be and we’re gonna prepare for if they would try again and the consultations that would happen and the environmental assessments that would happen. The best thing we can do is stay united and be prepared to deal with if they come because we’re not totally against development, as we’ve been saying. We wanna do it safe as possible, and we wanna be partners and be fully involved in any kind of project that happens. With that in mind, we’re thinking they’re gonna come back and try it again.

DIMITRI LASCARIS: I wish you the best of luck in obtaining protection of your rights and the rights of fellow members of your community. This has been Dimitri Lascaris speaking with Eugene Kung and Jerry Natanine, former mayor of Clyde River in Nunavut. Thank you very much for joining us today, gentlemen.

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